TYRONE ASSIZES HELD AT OMAGH. Monday July 24 1833
Lessee DAVID McMORRIS, Plaintiff; JOHN McMORRIS, Defendant
This is an action of ejectment on the title to recover part of the lands of Ardmore, held by the father of the parties under SIR JOHN HAMILTON, in the Dunnemana estate. The plaintiff and defendant are brothers. The father, JAMES McMORRIS, died in 1791, leaving three sons and one daughter, the plaintiff the eldest; NINIAN, who was a surgeon, the second; and JOHN, the defendant, the youngest. They were all infants at his death, and continued to reside in the house on the lands with their mother, and afterwards by some arrangement the plaintiff and defendant divided the lands, which the plaintiff now wished to break through, and went on his strict title as heir at law. The defendant, however, proved by secondary evidence, the existence of a will and subsequent arrangement by deed, which was destroyed by NINIAN, but binding each party to the half of the lands.
On this proof being given, the plaintiff consented to a nonsuit.
Counsel for Plaintiff, MESSRS. CHAMBERS, LYLE, and BROOKE. Agent: MR. CHAMBERS.
Counsel for Defendant, MESSRS. JOHNSTON, DEERING, and COLHOUN. Agents: MILLER and FRANKS.
ROBERT COCHRAN, JUN. Plaintiff; JAMES and CHARLES DOHERTY, Defendants
MR. SPROUL opened the pleadings. It was an action brought for the recovery of £125 the purchase of defendant’s good will in a farm of land near Strabane, held under the MARQUIS OF ABERCORN. MR. DEERING, K.C., stated the case, and the defence set up that any bargain made was with JAMES DOHERTY only, although both defendants were entered by SIR J. J. BURGOYNE, as the purchasers in the Rent Book; but it could not be sufficiently proved, that they both acquiesced in the bargain although present. On the other hand, it was proved by two witnesses, that the defendant, CHARLES, declined having anything to say to making the original bargain, previous to going to the office of the agent. It was also contended by the defendants, that the bargain was not complied with on the part of the plaintiff, as there was a year and a half rent due on the land, and an unsettled account lying as a charge on the lands for some time, that the plaintiff and MR. LOWTHER held the lands jointly. A tender of the entire sum of £125 was proved on the part of JAMES DOHERTY, provided MR. COCHRAN would produce the receipts and clear the land. Verdict for the defendant with 6 pence costs.
Counsel for Plaintiff, MESSRS. DEERING, COLHOUN, AND SPROUL - Agent MR. S. COLHOUN.
Counsel for Defendants, MESSRS. DOHERTY, LYLE and MAJOR - Agents, Messrs. ELLIOTT & WAUCHOB.
CHARLES, v. JOHNSTON
This was an action of slander for defendant’s using language injurious to the credit of plaintiff as a dealer in spirits. A third person in his rounds, as a traveller for a distillery concern, meeting the defendant, was asked by him how his customers were getting on, to which he said, very well, and defendant told him to beware of the plaintiff CHARLES, as he was in danger of becoming insolvent, &c.
The defendant’s Counsel replied, that the declaration was not supported, as there was a variance in the proof of the words spoken, and those averred in the counts of the declaration. - The Judge said, there was sufficient to go to the Jury, and a verdict was returned for the plaintiff of 40 shillings damages and 6 pence costs.
July 29, 1833
WILLIAM ORR, ESQ. v. SIR J. J. BURGOYNE
Mr. Sproul opened the proceedings:
This was an action of Assumpsit, for goods sold and delivered. The declaration contained the usual money counts. The damages were laid at £1000, and the defendant pleaded the general issue.
MR. BROOK stated the plaintiff’s case: The plaintiff is a merchant, residing in Strabane, embarked in an extensive trade; and the defendant was the agent of the MARQUIS OF ABERCORN, on whose property the flour Mill of Sion was situated, which were burned in the year 1826, and by order of the Court of Chancery the Mills were ordered to be rebuilt, and one JAMES SCULLY, an Architect, became the contractor at a sum of £849. SCULLY, in building the Mill required a large quantity of timber, and went to MR. ORR’S store for the purpose of laying off timber, which he did, at the time stating his contract for the Mill, and that SIR JOHN would pay for any taken. JAMES PORTER, the partner, at first, gave him some, but on laying off a larger quantity, he went to Sir John with Scully’s account. The account amounting to £120, Sir John said he would pay and desired that when more would be taken off, to furnish the account to him from time to time. The account was then furnished, and in all amounted to £428. 1s. 4½d, which Sir John at last refused, alleging, that Scully had not finished his contract, that he had paid him £593 on acct., and should pay no more money until the Mill should be finished, at the same time telling plaintiff he would do all he could for him. Plaintiff afterwards applied to the Marquis, who refused to pay.
JAMES PORTER produced by plaintiff, and sworn in the Voire Dire; Was partner of the plaintiff in 1827, 1828, 1829, and to June 1830, when the partnership dissolved, and gazetted the 1st July. At the time of dissolution MR. ORR got all the debts, and witness had no claim, as he owed Mr. Orr a sum of money which would be paid off by the collection of their debts.
An argument here occurred on the admissibility of Porter as a witness, which was ably argued by . DEERING, SHEIL and MAJOR for deft. By MESSRS BROOK, COLHOUN, and SPROUL, for plaintiff and the Judge took a note of the objection, but allowed the examination to go on.
JAMES PORTER then sworn and examined by MR. COLHOUN: Knew JAMES SCULLY, who died during the Cholera, about September last, knew the Sion Mill; plaintiff and witness kept a timber yard, and Scully came to witness stating that he had contracted for rebuilding the Mill, and required a quantity of timber, this was in the year 1827, and in these took off some timber which amt. to £120 and witness went with Scully to Sir John with the acct. Sir John said he could not pay it that day, but would another day, meaning a day not far distant.
SCULLY said the account was right, and that more timber would be wanted, and Sir John desired witness to furnish the account from time to time as timber should be taken away. The timber when laid off was always marked A. for Abercorn, and the account was headed in Plaintiff’s books the MARQUIS OF ABERCORN by, James Scully for Sion Mill; witness repeatedly furnished the accounts to Sir John and in August 1829 it amounted to £420, which with some omissions amounted to £428 1s 4½. All the accts. were furnished to Sir John in person, and he never made any objection, but always said he would pay, putting witness off from time to time. The goods were all supplied at Cash prices; there was no deed at the formation or dissolution of partnership and he thinks Sir John knew of the dissolution, as he gets the Strabane paper in which the Advertisement was inserted. Witness was indebted to Plaintiff and there was scarce sufficient to pay him out of the collection of the debts. Previous to 1827 witness supplied goods to the Marquis of Abercorn’s estate, and in Oct. 1822 the acct. opened by directions from Sir John to head the acct. the Representative of the Marquis of Abercorn to distinguish it from his own acct. Sir John paid witness for materials furnished for their works on the estate, and accts. for cash work kept separate, recollects writing a letter to Sir J. in his own name by desire of Mr. O. requesting payment.
Cross examined by Mr. Deering: Sir John was not made a debtor in the goods supplied to Mill, but acct. headed Marquis of Abercorn, per Sion Mill, by James Scully; Sir John paid his own account for canal; witness made a poor mouth but did not always tell a lie ~~~ in writing the letter in his own name he told a deliberate lie, it was not true what he wrote; he knew Sir John was Agent under Court of Chancery, and that Lord Aberdeen was one of the Guardians of the minor; witness had confidence in Scully, and he knew he had contracted for the Mill; action brought since Marquis came to the country, and since Scully’s death, and removal of Sir John from the Agency, Mr. Orr applied to the Marquis and he refused to pay.
To the Jury Mr. Orr has a bond of witness, but considers if plaintiff does not recover, that he will not look to witness for half the loss.
At this stage of the case, the Judge (JEBB) said, he thought there could be no difficulty in the matter, as he considers the Marquis bound to pay, and the plaintiff should not be permitted to remain out of his money. This was met on the part of the plaintiff by the Marquis absolutely refusing to pay, and the hardship of the defendant paying himself.
ROGER KENNEDY proved Scully’s getting away the timber.
Mr. Cooke proved Scully getting materials from his foundry for the Sion Mill and that Sir John paid his account.
Letter of Sir John read, dated 30th August, 1830 promising to settle accounts in ten days.
Case closed for plaintiff.
Mr. Deering for defendant, submitted to the Court that the plaintiff should be nonsuited on several grounds. It appeared by the evidence that Sir John acted as Agent to the estate of the Marquis of Abercorn, with the knowledge of the plaintiff, and the evidence that Sir John’s undertaking was only collateral, Scully having first been credited; therefore an undertaking should have been in writing, and a special averment in the declaration.
Court: I shall receive your objections, but will let the case go to the Jury.
Mr. Deering addressed the Jury, and said, that circumstanced as Sir John was, he could do nothing out of his pocket, as the Marquis of Abercorn had positively refused to pay plaintiff, and it could not possibly be urged that the defendant had any interest in keeping the plaintiff out of his demand; but he had now been removed from the Agency; and, Gentlemen, such as the Jury was composed of, must be conversant with the duties of receivers of estates.
Mr. Porter had possibly been a little loose in his evidence, since the most trivial change in the conversation with the defendant might produce a great change in the construction of the law, as “I will pay it” or “I will do my best to get you paid.” The entire case was bottomed on the evidence of Porter, and he admitted that a person barely telling a deliberate falsehood by letter, might stretch a little his oath. This latter gentleman, tells three deliberate falsehoods, that he wanted the money for himself; that Mr. Orr had nothing to do with it; and he now explains that by saying as Mr. Orr was rich, he, Porter, had Scully had a better chance of getting the money by making a poor mouth; Sir John answers that letter, as if it was a bona fide true letter ~~ and says there might be some deficiencies or mistakes in the transactions, as the mill is not finished; and I will pay no more money until Scully finishes the contract; then Orr applied to Scully, and gets him to write Defendant, and requests him to pay Plaintiff the balance in his hands, then if Sir John was the original debtor, what necessity for this order clearly showing that plaintiff had a certain lien or claim from Scully for the demand, and that it was through his means he was to be paid. The document out of Chancery directing the mill to be repaired was proved ~~ also, the receipt of Scully in April, 1830, and the letter in plaintiff’s handwriting, dated 22d Nov. 1830, requesting Sir John to pay him the balance and signed by Scully; then Porter’s letter of 8th April, 1831, and defendant’s answer.
GEORGE ARNOLD proved that all the work done on the mill only amounted to 734 11s 5d. that the mill was not yet finished.
MR. COLHOUN spoke to evidence: Totally at a loss to conceive, on what the defendant relied, but thought he would not have scrambled a defence to get out of his liability, but having dealt fairly and said, you credited the Marquis, or you credited the Guardian, and thought he might have said look to some of them; but he was astonished at setting up as a defence the credit of Porter, and the objection as to his not having joined in the action; this defence, he considered unworthy of defendant, for no matter whether he paid Orr or Porter, he would have been indemnified if discharged by either ~~ it is admitted the Plaintiff had given his goods on the responsibility of some one. We find defendant paying plaintiff his private account after the dissolution of the Partnership, and referring to the postponement of the settlement for a fortnight in Oct. last, he feels astonished at the audacity with which such a defence is got up.
When Plaintiff found every exertion unable to get money from Sir John, Porter admits he had to resort to writing a lie; but Gentlemen, who furnished him with the example? Mr. Porter, is as moral and religious a man, as the community can boast of, and it was furnished him with the example by putting him off from day to day in his promise of payment, he was thus following a formidable example, Mr. Orr was a man that Money might not be a great object to; yet it would be so to Porter, and he therefore calls, for money and requests payment.
He, in that letter, states a debt due to Firm for three years, intending to furnish it to Lord Aberdeen, and to make the Agent disburse the money he had received in legitimate demands. He called the attention of the Jury as to whom the credit was given; the heading of the accounts by order of Sir John; otherwise it would have been debited to himself. The credit having been thus given to the Marquis and notwithstanding the law laid down by Mr. Deering, in the absence of the Marquis’ responsibility, as a Minor, who is to become the person responsible? See the evidence of Mr. Cook; that Scully acted generally as the agent for the mill, and that Sir John acted upon that, and paid the demand. Then, as to the receipt of Scully, for £593. 14s. 3d. ~~ if ever there was a fraud attempted to be practiced in a court of justice, it was that receipt stated as received by John Quin. Who is John Quin? why not produce him? The defendant wants you to believe that Scully received the money. In passing the account before the Master, that account must be produced, and there are three letters across it, which the Jury may not be conversant with, is perfectly familiar to his eyes, J. S. T. means J. Seely Townsend.
Here Counsel was stopped by Mr. Deering stating, that such insinuations must go for nought; the account being verified by defendant’s affidavit, he considered Counsel should not go such lengths, knowing the practice of the Courts.
Mr. Colhoun proceeded. ~~ The Order to rebuild the mill does not limit the amount to be laid out; next called the attention of the Jury to an order of Scully. First order given on Scully’s credit, but different when it began to amount to £120. Then Porter went to Sir John’s office and requests payment; and if Porter is believed, the defendant then promised payment, and required the accounts to be furnished from time to time, in order to have a check on Scully. The commiseration of the Jury is not required; such is a dangerous example for Jurors to adopt; he could put counsel in mind of an anecdote taken from JOE MILLER, about CHARLES JAMES FOX, and one of his creditors calling for money, giving him his own day, which, he said, would be the day of judgment; and if the Jury makes the defendant pay the plaintiff, the Marquis of Abercorn as a man of honour and a Nobleman, should repay him.
JUDGE JEBB, in charging the Jury, said, there could be no doubt that the plaintiff’s claim was a just one, let the payment come from whom it might; and the only question the Jury had to try was to whom the credit was given. It might be furnished on credit of Sir John; it might be on the credit of the Guardian; or, it might be on the credit of Scully; and the goods given by the plaintiff, knowing of the contract. In either of the two last cases, the Jury must find for the defendant. There was clear evidence by Porter uncontradicted, that Sir John promised to pay. This evidence was in some degree corroborated by documentary evidence; and it was for the Jury to say to whom the credit was given; and as to the other points, the parties would have the benefit of the exceptions taken at the trial.
The Jury remained in consultation upwards of an hour, and found a verdict for plaintiff of £428 1s 4d, and 6d. costs.
After giving in their verdict, the Foreman, MR. CROSSLEY said, he had been requested by his brother Jurors, to express their regret, that the Marquis of Abercorn had not come forward and discharged the debt, which as a man of honour and a Nobleman, they considered he should have done, and expressed themselves, that no blame whatever could be attached to Sir John Burgoyne.
The Judge said, he would take care to communicate their opinion to the proper authorities; on which opinion he perfectly agreed.